DOCS-#1388013-v1-LWHRA Leave (KNM).PPTX [Read-Only] · Title: Microsoft PowerPoint -...

Should I Stay or Should I Go?FMLA and other Leave and Obligations

Kristin Nealey Meier

©2016 by Ryan, Swanson & Cleveland, PLLC2

FMLA Employer Coverage and Employee Eligibility Qualifying Reasons for Leave Amount of Leave Employer Rights and Responsibilities Employee Rights and Responsibilities Military Family Leave Provision

Topics of Discussion


Other Leave Washington Family Leave Act (WFLA) Washington Family Care Act Washington Law Against Discrimination (WLAD) Leave for Victims of Domestic Violence/Sexual Assault Leave for Spouses of Military Personnel Leave for Emergency Services Personnel Jury and Witness Duty Leave

Topics of Discussion


Private sector employers with 50 or more employees Public Agencies Public and private elementary and secondary schools

Employer Coverage


Employed by covered employer Worked at least 12 months Have at least 1,250 hours of service during the 12

months before leave begins Employed at a work site with 50 employees within 75

miles

Employee Eligibility


Eligible employees may take FMLA leave: For the birth or placement of a child for adoption or foster care To care for a spouse, son, daughter, or parent with a serious health

condition For their own serious health condition Because of a qualifying reason arising out of the covered active duty

status of a military member who is the employee’s spouse, son, daughter, or parent (qualifying exigency leave)

To care for a covered servicemember with a serious injury or illness when the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember (military caregiver leave)

Qualifying Leave Reasons


Parent - A biological, adoptive, step or foster father or mother, or someone who stood in loco parentis to the employee when the employee was a son or daughter. Parent for FMLA purposes does not include in-laws.

Spouse - A husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage and same-sex marriage.

Son or Daughter - For leave other than military family leave, a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age, or 18 or older and incapable of self-care because of a mental or physical disability.

Qualifying Family Members


Both the mother and father are entitled to FMLA leave for the birth or placement of the child and/or to be with the healthy child after the birth or placement (bonding time)

Employees may take FMLA leave before the actual birth, placement or adoption

Leave must be completed by the end of the 12-month period beginning on the date of the birth or placement

Qualifying Leave Reasons –For the Birth or Placement of a Child


Illness, injury, impairment or physical or mental condition involving: Inpatient Care (an overnight stay in a hospital, hospice,

or residential medical facility, plus any related incapacity or subsequent treatment), or

Continuing Treatment by a Health Care Provider Incapacity of more than three consecutive, full calendar days that

involves either:– Treatment two times by HCP (first in-person visit within seven days, both visits within 30

days of first day of incapacity)– Treatment one time by HCP (in-person visit within seven days of first day of incapacity),

followed by a regimen of continuing treatment (e.g., prescription medication)(continued)

Qualifying Leave Reasons –Serious Health Condition


Continuing Treatment by a Health Care Provider Incapacity of more than three consecutive, full calendar days that

involves either:– Pregnancy (Incapacity due to pregnancy or prenatal care)– Chronic Conditions – Permanent/Long-term Conditions – Absence to Receive Multiple Treatments

» For restorative surgery after an accident or other injury, or» For conditions that, if left untreated, would likely result in incapacity of more than three

consecutive, full calendar days

Qualifying Leave Reasons –Serious Health Condition


Employee’s workweek is basis for entitlement Eligible employees may take up to 12 workweeks of

FMLA leave: for the birth or placement of a child for adoption or foster care; to care for a spouse, son, daughter, or parent with a serious health

condition; and for the employee’s own serious health condition.

Amount of Leave


Employee is entitled to take intermittent or reduced schedule leave for: Employee’s or qualifying family member’s serious health condition

when the leave is medically necessary Covered servicemember’s serious injury or illness when the leave is

medically necessary A qualifying exigency arising out of a military member’s covered active

duty status

Leave to bond with a child after the birth or placement must be taken as a continuous block of leave unless the employer agrees to allow intermittent or reduced schedule leave (continued)

Intermittent Leave


In calculating the amount of leave, employer must use the shortest increment the employer uses to account for other types of leave, provided it is not greater than one hour

Shortest increment may vary during different times of day or shift

Required overtime not worked may count against an employee’s FMLA entitlement

Intermittent Leave


Physical impossibility Holidays Planned medical treatment Transfer to an alternative position Spouses may be limited to a combined total for certain

leave reasons

Special Rules


Method determined by employer Calendar year Any fixed 12-month leave year A 12-month period measured forward A rolling 12-month period measured backward

12-Month Period


“Substitution” means paid leave provided by the employer runs concurrently with unpaid FMLA leave and normal terms and conditions of paid leave policy apply

Employees may choose, or employers may require, the substitution of accrued paid leave for unpaid FMLA leave

Employee remains entitled to unpaid FMLA if procedural requirements for employer’s paid leave are not met Examples: vacation; PTO; sick leave; workers’ compensation leave;

disability leave

Substitution of Paid Leave


Provide notice Maintain group health insurance Restore the employee to same or equivalent job and

benefits Maintain records

Employer Responsibilities


Employers must inform employees of FMLA: Post a General Notice, and Provide General Notice in employee handbook or, if no handbook,

distribute to new employees upon hire

Electronic posting and distribution permitted Languages other than English required where

significant portion of workforce not literate in English $110 penalty for willful posting violation

Employer Responsibilities –Provide General Notice


Within five business days of leave request (or knowledge that leave may be FMLA-qualifying)

Eligibility determined on first instance of leave for qualifying reason in applicable 12-month leave year

New notice for subsequent qualifying reason if eligibility status changes

Provide a reason if employee is not eligible May be oral or in writing (optional WH-381)

Employer Responsibilities –Provide Notice of Eligibility


Within five business days of having enough information to determine leave is FMLA-qualifying

Once for each FMLA-qualifying reason per applicable 12-month period (additional notice if any changes in notice information)

Include designation determination; substitution of paid leave; fitness for duty requirements

Must be in writing (optional WH-382) If leave is determined not to be FMLA-qualifying, notice

may be a simple written statement (continued)

Employer Responsibilities –Provide Notice of Designation


Group health plan benefits must be maintained throughout the leave period

Same terms and conditions as if employee were continuously employed

Employee must pay his/her share of the premium Even if employee chooses not to retain coverage during

leave, employer obligated to restore same coverage upon reinstatement

In some circumstances, employee may be required to repay the employer’s share of the premium if the employee does not return to work after leave

Employer Responsibilities –Maintain Group Health Plan Benefits


Same or equivalent job equivalent pay equivalent benefits equivalent terms and conditions

Employee has no greater right to reinstatement than had the employee continued to work

Bonuses predicated on specified goal may be denied if goal not met

Key employee exception (“substantial and grievous” harm)

Employer Responsibilities –Job Restoration


Employers cannot: interfere with, restrain or deny employees’ FMLA rights discriminate or retaliate against an employee for having exercised

FMLA rights discharge or in any other way discriminate against an employee

because of involvement in any proceeding related to FMLA use the taking of FMLA leave as a negative factor in employment

actions

Employer Responsibilities –Prohibited Employment Actions


Basic payroll information Dates FMLA leave is taken Hours of leave if leave is taken in less than one full day Copies of leave notices Documents describing benefits/policies Premium payments Records of disputes

Employer Responsibilities –Maintain Records


Provide sufficient and timely notice of the need for leave

If requested by the employer: Provide certification to support the need for leave Provide periodic status reports Provide fitness-for-duty certification

Employee Responsibilities


Provide sufficient information to make employer aware of need for FMLA-qualifying leave

Specifically reference the qualifying reason or the need for FMLA leave for subsequent requests for same reason

Consult with employer regarding scheduling of planned medical treatment

(continued)

Employee Responsibilities –Notice Requirements


Comply with employer’s usual and customary procedural requirements for requesting leave absent unusual circumstances

Foreseeable Leave - 30 days notice, or as soon as practicable

Unforeseeable Leave - as soon as practicable

Employee Responsibilities –Notice Requirements


Medical Certification for serious health condition (optional WH-380-E and 380-F) Submit within fifteen calendar days Employer must identify any deficiency in writing and provide seven

days to cure Annual certification may be required Employee responsible for any cost

(continued)

Employee Responsibilities –Provide Certification


Employer (not employee’s direct supervisor) may contact health care provider to: Authenticate: Verify that the information was completed and/or

authorized by the health care provider; no additional information may be requested

Clarify: Understand handwriting or meaning of a response; no additional information may be requested beyond what is required by the certification form

(continued)



Second and third opinions (at employer’s cost) If employer questions the validity of the complete certification, the

employer may require a second opinion If the first and second opinions differ, employer may require a third

opinion that is final and binding(continued)



Recertification No more often than every 30 days and with an absence

– If the minimum duration on the certification is greater than 30 days, the employer must wait until the minimum duration expires

– In all cases, may request every six months with an absence

More frequently than every 30 days if: – the employee requests an extension of leave, or– circumstances of the certification change significantly, or– employer receives information that casts doubt on the reason for leave

Consequences of failing to provide certification Employer may deny FMLA until certification is received



Employee must respond to employer’s request for information about status and intent to return to work

Employee Responsibilities –Provide Periodic Status Reports


For an employee’s own serious health condition, employers may require certification that the employee is able to resume work Employer must have a uniformly-applied policy or practice of requiring

fitness-for-duty certification for all similarly-situated employees

If state or local law or collective bargaining agreement is in place, it governs the return to work

Not permitted for intermittent or reduced schedule leave unless reasonable safety concerns exist

Authentication and clarification Employee responsible for any cost

Employee Responsibilities –Fitness-for-Duty Certification


The FMLA military family leave provisions include: Qualifying exigency leave, which provides up to 12

workweeks of FMLA leave to help families manage their affairs when a military member has been deployed to a foreign country; and

Military caregiver leave, which provides up to 26 workweeks of FMLA leave to help families care for covered servicemembers with a serious injury or illnessGenerally, FMLA rules and requirements continue to apply

FMLA Military Family Leave


Eligible employees may take up to 12 workweeks of FMLA leave because of a qualifying reason that arises out of the fact that the employee’s spouse, son, daughter, or parent is on, or has been notified of an impending call, to “covered active duty” For qualifying exigency leave, son or daughter refers to

a son or daughter of any age Leave for this reason counts against an employee’s

normal FMLA entitlement for other leave reasons within the 12-month leave year

Qualifying Exigency Leave


Regular Armed Forces: duty during deployment of the member with the Armed Forces to a

foreign country

Reserve components of the Armed Forces (members of the National Guard and Reserves): duty during deployment of the member with the Armed Forces to a

foreign country under a call or order to active duty in support of a contingency operation

Qualifying Exigency Leave –Covered Active Duty


Short-notice deployment (up to seven days) Military events and related activities Childcare and school activities Financial and legal arrangements Non-medical counseling Care of the military member’s parent Rest and recuperation (up to fifteen days) Post-deployment activities (90-day period) Additional activities by agreement

Qualifying Exigencies


An employer may require an appropriate certification with: a copy of the military member’s active duty orders a qualifying exigency certification (optional Form WH-384)

– Statement of facts– Dates of leave– Frequency and duration of intermittent leave– Contact information for any third party meeting

The employer may verify meetings with a third party and may contact DOD to verify the military member’s covered active duty status



Eligible employees may take up to 26 workweeks of FMLA leave in a “single 12-month period” to care for a “covered servicemember” with a “serious injury or illness” if the employee is the covered servicemember’s spouse, parent, son, daughter, or next of kin (designated or closest blood relative) For military caregiver leave, son or daughter refers to a

son or daughter of any age All FMLA leave is limited to a combined total of 26

workweeks during the “single 12-month period”; no more than 12 workweeks can be taken for other leave reasons

Military Caregiver Leave


A covered servicemember may be: a current member of the Armed Forces; OR a veteran of the Armed Forces.

Covered Servicemember


A current member of the Armed Forces, including a member of the National Guard or Reserves: undergoing medical treatment, recuperation, or therapy,

is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness

Covered Servicemember –Veteran


A serious injury or illness is one that: was incurred by a servicemember in the line of duty on

active duty; or existed before the servicemember’s active duty and

that was aggravated by service in the line of duty on active duty;and

may cause the servicemember to be medically unfit to perform the duties of his or her office, grade, rank, or rating

Covered Servicemember –Serious Injury or Illness


An employer may require that leave to care for a covered servicemember be supported by a certification completed by an authorized health care provider (optional WH-385), or an Invitational Travel Order (ITO) or Invitational Travel Authorization (ITA)

Authentication and clarification Limited second and third opinions

Employee Responsibilities –Certification for a Current Servicemember


A veteran of the Armed Forces is a covered servicemember if he or she: is undergoing medical treatment, recuperation, or

therapy for a serious injury or illness; and was discharged under conditions other than

dishonorable within the five-year period before the employee first takes military caregiver leave

Covered Servicemember –Veteran


An injury or illness that was incurred or aggravated by service in the line of duty on active duty in the Armed Forces, that manifested before or after the servicemember became a veteran, and that is either:1. a continuation of a serious injury or illness that was incurred or aggravated when

the veteran was a member of the Armed Forces; or2. a condition for which the veteran has received a U.S. Department of Veterans

Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater (the rating may be based on multiple conditions); or

3. a condition that substantially impairs the veteran’s ability to work because of a disability related to military service, or would do so absent treatment; or

4. an injury that is the basis for the veteran’s enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers

Veteran Serious Injury or Illness


An employer may require that leave to care for a veteran be supported by a certification completed by an authorized health care provider (optional WH-385-V)

Authentication and clarification An employee may submit a copy of a VASRD rating

determination or enrollment documentation from the VA Program of Comprehensive Assistance for Family Caregivers to support the veteran’s serious injury or illness

Additional information may be needed to establish the other requirements for a complete certification such as: confirmation of family relationship; documentation of discharge date

Employee Responsibilities –Certification for a Veteran


“Single 12-month period” Per covered servicemember, per injury Limitations on leave

26 workweeks for all qualifying reasons Designation of caregiver leave Spouses working for same employer

Military Caregiver Leave –Application of Leave


To enforce FMLA rights, employees may: File a complaint with Wage and Hour Division File a private lawsuit (Section 107(a))

Action must be taken within two years after the last action which the employee contends was in violation of the Act, or three years if the violation was willful

FMLA Enforcement Mechanisms


Employers of 8 or more employees must provide a woman with leave for the time she is sick or temporarily disabled because of pregnancy or child birth.

Must treat pregnancy related leave the same as other temporary disabilities, including benefits.

Washington Family Leave Act provides for up to 12 weeks of unpaid leave for the birth or placement of a child in addition to the woman’s pregnancy disability leave. The Act adopts the same qualification standards as the FMLA.

(continued)

State of Washington Requirements


An employee who uses all or part of FMLA leave for an exigent reason related to military deployment or for military caregiver leave may still have access to all 12 weeks of FLA leave (including for their own serious health condition, care of an ill family member, or care of a new child).

State of Washington Requirements


An employer’s duty to reasonably accommodate an employee’s disability may require it to grant additional leave beyond that required by the FMLA or state leave laws.

Reasonable Accommodation for Disabilities (ADA, WLAD)


Washington Family Care ActRCW 49.12.265 and WAC 296-130 Employers with 1 or more employees Employees eligible immediately upon employment

who have a paid leave benefit If offer leave, must allow paid sick leave for family

care

Other Leave Laws


Leave for Victims of Domestic Violence, Sexual Assault or Stalking RCW 49.77 Employers with 1 or more employees All employees are eligible immediately Reasonable leave to obtain legal and social help Family members covered

Child, Spouse, Parent, Parent-in-Law, Grandparent, person dating

Other Leave Laws


Leave for Spouses of MilitaryRCW 49.77 Employers with 1 or more employees All employees who work 20 or more hours/week 15 days per deployment To be taken prior to or while spouse is on leave

from deployment

Other Leave Laws


Leave for Emergency Services WorkersRCW 49.12.460 Employers with 20 or more FTEs in prior year Employees who are volunteer firefighters, a

reserve peace officer or Civil Air Patrol Allows for late arrival or missed work to perform

emergency services

Other Leave Laws


Jury and Witness Duty LeaveRCW 2.36.165 Employers with 1 or more employees All employees, immediately upon employment Employer must provide sufficient leave to serve If employee receives a summons, employer may

not: Deprive an employee of employment; Threaten, coerce or harass an employee; or Deny an employee promotional opportunities.

Other Leave Laws

Thank you!

Kristin N. MeierRyan, Swanson & Cleveland

[email protected](206) 654-2293

DOCS-#1388013-v1-LWHRA Leave (KNM).PPTX [Read-Only] · Title: Microsoft PowerPoint -...

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